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Home My WebLink About2013-20 DISCOVER BANK, : COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : DAVID J. MCALICHER, : DEFENDANT : 13-0020 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF’S COMPLAINT BEFORE MASLAND, J. OPINION AND ORDER OF COURT Masland, J., June___, 2013:-- Before the court are the preliminary objections of David J. McAlicher, Defendant, to the complaint filed by Plaintiff, Discover Bank. For the following reasons the preliminary objections are sustained in part and overruled in part. I. Background This is a collections matter arising from an allegedly delinquent credit card account. Defendant objects to the adequacy of Plaintiff’s complaint based on the following: 1) Plaintiff has failed to allege facts sufficient to maintain a cause of action for Breach of Contract and Account Stated; 2) the Complaint contains only a general assertion of the amount the Plaintiff claims is owed and provides no detail as to the dates on which the debt was incurred, the amounts incurred, the amounts of payments, or dates of accrual and amounts of interest charges and other fees; 3) no averment is made as to whether the alleged agreement between the parties is oral or written; and 4) the Complaint improperly pleads account stated. For its part, Plaintiff contends that this suit is premised on a theory that the complaint is sufficient when those facts necessary 13-0020 CIVIL TERM for the Defendant to prepare a defense are present. Moreover, Plaintiff points out that the complaint averred the existence of a contract, a breach of said contract, the resulting damages from the breach, the account number, account type, APR applied to the account, and the card-member agreement. II. Discussion The Defendant bears the burden of proof with regard to preliminary objections, and any doubt should be resolved against the objecting party. Koken v. Steinberg, 825 A.2d 723 (Pa. Cmwlth. 2003). When a trial court sustains preliminary objections on their merits, it is generally an abuse of discretion to dismiss the complaint without leave to amend. Harley Davidson Motor Company, Inc. v. Hartman, 442 A.2d 284 (Pa. Super. 1982). A trial court’s decision regarding preliminary objections will be reversed only where there has been an error of law or an abuse of discretion. Cooper v. Frankford Health Care System, Inc., 960 A.2d 134 (Pa. Super. 2008). III. Preliminary Objection - Pa. R.C.P. No. 1028(a)(4) - Demurrer Preliminary objections, in the nature of a demurrer, require the Court to resolve the issues based solely on the pleadings, no evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer. Cardenas v. Schober, 783 A.2d 317, 321 (Pa. Super. 2001) (citing Pa. R.C.P. 1028(a)(4)). All material facts set forth in the pleading and all inferences reasonably deducible must be admitted as true. Id. at 321. In determining whether the trial court properly sustained preliminary objections, the appellate court must examine the averments in the complaint, together with the documents and exhibits attached thereto, in order to evaluate the sufficiency of the facts averred. Brosovic v. Nationwide Mutual Insurance -2- 13-0020 CIVIL TERM Co., 841 A.2d 1071, 1073 (Pa. Super. 2004). Their inquiry is to determine the legal sufficiency of the complaint and whether the pleading would permit recovery if ultimately proven. Id. The appellate court will reverse the trial court's decision only where there has been an error of law or abuse of discretion. Id. A. Account Stated The Defendant’s first and fourth preliminary objections argue that the Plaintiff has improperly used an account stated theory and has failed to allege facts sufficient to maintain a cause of action based on such a theory. There is a jurisdictional split within the Commonwealth as to whether an account stated theory is sufficient to establish a claim for credit card debt. However, this Court has rejected an account stated theory for credit card cases. Citibank (South Dakota), N.A. v. Ross, No. 10-5668 (Cumb. Co., 2011) (Masland, J.) Therefore, as it relates to an account stated theory, Defendant’s first and fourth preliminary objections are sustained. B. Breach of Contract Defendant’s first preliminary objection argues, in part, that Plaintiff has failed to allege facts sufficient to maintain a cause of action for breach of contract. Such a claim requires three elements: 1) the existence of a contract; 2) a breach of a duty imposed by the contract; and 3) resulting damages. Arrow Financial Services LLC v. Witmer, No. 09-6197 (Cumb. Co., 2010) (Ebert, J.). The first element is present in the Plaintiff’s complaint by stating, “Defendant applied for, received and used a credit account . . . . Under the terms of the Agreement, Defendant was given the right to use the account to make purchases, cash advances, and/or balance transfers, [and] promised to timely pay the principal balance accumulated plus interest, fees and penalties where applicable.” -3- 13-0020 CIVIL TERM Pl.’s Compl., Jan. 2, 2013, ¶ 3,5,6,7. Therefore, Plaintiff’s complaint shows that a contract was formed. Furthermore, the complaint shows that the contract was breached thereby satisfying the second element by stating, “Defendant defaulted under the terms of the Agreement by failing and refusing to make timely payments on the Account, although demand was made for same.” Pl.’s Compl., Jan. 2, 2013, ¶ 8. Lastly, Plaintiff’s complaint satisfies the third element by stating, “[t]he Account was charged off with an outstanding balance of $14,361.51 [and] Plaintiff has suffered monetary damages in the amount of $14,361.51.” Pl.’s Compl., Jan. 2, 2013, ¶ 11, 12. Therefore, Defendant’s first preliminary objection relating to a breach of contract claim is overruled. IV. Failure to Conform to Pa. R.C.P. 1028(a)(2) Defendant’s second preliminary objection is that the complaint does not comport with Pa. R.C.P 1028(a)(2) which states, “Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:failure of a pleading . . . to conform to law or rule of court or inclusion of scandalous or impertinent matter.” Pa. R.C.P. No. 1028. The Defendant points out that the complaint contains only a general assertion of the amount the Plaintiff claims is owed and provides no detail as to the dates on which the debt was incurred, the amounts incurred, the amounts of payments, or dates of accrual and amounts of interest charges and other fees. Initially, we note that the Arrow Financial Services LLC court stated, “[w]hile we decline to hold that the plaintiff in this case must attach each and every monthly billing statement related to this account, . . . [the plaintiff] should attach statements reflecting the opening of the account and statements which show the individual charges and -4- 13-0020 CIVIL TERM fees.” Arrow Financial Services LLC, No. 09-6197; see also Captial One Bank N.A. v. th Clevenstine, 7 Pa. D. & C. 5 153, 156. Here, Plaintiff fails to include the statement reflecting the opening of the account and each individual charge and fee associated with the account. The Complaint does however include charges and fees from November 10, 2009 through January 14, 2010 but, does not establish how an original balance of $13,626.59 was incurred. Plaintiff’s complaint must include this information because “the defendant is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what he must contest.” Marine th Bank v. Orlando, 25 Pa. D. & C. 3d 264 (Erie Cty. 1982); Clevenstine, 7 Pa. D. & C. 5 th at 156 (citing Remit Corporation v. Miller, 5 Pa. D. & C. 5 43, 48 (Centre Cty. 2008)). Therefore, the complaint does not aver sufficient material facts to enable Defendant to prepare his case and thus does not comport with rule 1019(a). Smith v. Wagner, 403 Pa. Super 316, 319 (1991); Rambo v. Green, 906 A.2d 1232, 1236 (Pa. Super. 2003). As a result, Defendant’s second preliminary objection is sustained. V. Failure to Conform to Pa. R.C.P. 1019(h) and (i) Defendant’s third preliminary objection is that Plaintiff has failed to adhere to Pa. R.C.P. 1019(h) and Pa. R.C.P. 1019(i). Pursuant to Pa. R.C.P. No. 1019(h), “[w]hen any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written.” Pa. R.C.P. No. 1019. Here, Plaintiff’s complaint clearly specifies that the agreement was in writing by stating, “pursuant to a written agreement.” Pl.’s Compl. Jan. 2, 2013, ¶ 3. Furthermore, Pa. R.C.P. No. 1019(i) states that, “[w]hen any claim or defense is based upon a writing, the pleader shall attach a -5- 13-0020 CIVIL TERM copy of the writing, or the material part thereof.” Pa. R.C.P. No. 1019. Plaintiff attached a Card Member Agreement dated November 10, 1990, which satisfies this writing requirement. Whether this agreement is the same agreement that the Defendant signed is a question of fact and therefore must be resolved against the objecting party in determining the sufficiency of a preliminary objection. Koken, 825 A.2d at 726. For the forgoing reasons, Defendant’s third preliminary objection is overruled. VI. Conclusion In conclusion, we sustain Defendant’s second preliminary objection as Plaintiff has not included an account statement for the opening of the account nor has it included statements identifying how and when the fees and charges were incurred. In addition, as it relates to an account stated, we sustain Defendant’s first and fourth preliminary objections, since this Court does not recognize an account stated theory for credit card cases. Furthermore, relating to a breach of contract claim, we overrule Defendant’s first preliminary objection as Plaintiff alleged facts which support the existence of a contract, a breach of said contract, and resulting damages. Lastly, we overrule Defendant’s third preliminary objection as Plaintiff’s complaint states that the agreement was written and attached a copy of the written agreement. ORDER OF COURT AND NOW, this ___ day of June, 2013, upon consideration of the Defendant’s Preliminary Objections to Plaintiff’s Complaint and the briefs filed by the parties, IT IS HEREBY ORDERED AND DIRECTED that Defendant’s Preliminary SUSTAINED IN PART AND OVERRULED IN Objections to Plaintiff’s Complaint are -6- 13-0020 CIVIL TERM PART .This Court grants Plaintiff leave to file a legally sufficient amended Complaint within thirty (30) days of the date of this Order. By the Court, Albert H. Masland, J. Benjamin J. Cavallaro, Esquire Attorney for Plaintiff Michael J. Pykosh, Esquire Attorney for Defendant -7- DISCOVER BANK, : COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : DAVID J. MCALICHER, : DEFENDANT : 13-0020 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF’S COMPLAINT BEFORE MASLAND, J. ORDER OF COURT AND NOW, this ___ day of June, 2013, upon consideration of the Defendant’s Preliminary Objections to Plaintiff’s Complaint and the briefs filed by the parties, IT IS HEREBY ORDERED AND DIRECTED that Defendant’s Preliminary SUSTAINED IN PART AND OVERRULED IN Objections to Plaintiff’s Complaint are PART .This Court grants Plaintiff leave to file a legally sufficient amended Complaint within thirty (30) days of the date of this Order. By the Court, Albert H. Masland, J. Benjamin J. Cavallaro, Esquire Attorney for Plaintiff Michael J. Pykosh, Esquire Attorney for Defendant